Section of Individual Rights &
Responsibilities
25 Years Later: The Impact of Roe v. Wade |
| Jenny Hontz is a writer in Los
Angeles. |
When the Supreme Court ruled in 1973 that a woman's right to privacy included her choice to have an abortion, few predicted the decision would be the subject of such intense debate a quarter of a century later. Perhaps no other ruling since then has had a greater impact on the lives of American women and their families than Roe v. Wade, 410 U.S. 113 (1973). According to Gloria Feldt, president of the Planned Parenthood Federation of America, "Without the protections of Roe, all other legal and civil rights are meaningless. If you can't determine the fate of your body, all other rights pale." Sarah Weddington, the lawyer who argued and won the Supreme Court case legalizing abortion nationwide, echoed that sentiment: "Nothing determines the course of women's lives more than the spacing and timing of her children." There's no doubt that the ability to control whether and when to reproduce has allowed women to pursue educational and career opportunities on their own terms, making women fuller and more equal citizens. But Roe v. Wade and the political and legal battles it set into motion have reverberated far beyond the issue of abortion. The question of when life begins, which Roe essentially dodged, remains in dispute, influencing policy in such diverse areas as medical research, cloning, the behavior of pregnant women and frozen embryo ownership. With technology moving faster than the law, the Supreme Court has yet to weigh in on many of these issues, leaving states to decipher the legacy of Roe, in the context of a whole new thorny legal thicket.
On Jan. 22, 1973, the Supreme Court voted 7-2 to strike down as unconstitutional a Texas statute outlawing abortions except to save the life of the mother. Prior to Roe, nearly two-thirds of the states prohibited abortion, although many women obtained illegal and sometimes deadly abortions in the United States and Mexico. Most of the anti-abortion laws dated back to the mid-1800s, when the American Medical Association joined with religious leaders to outlaw the practice that had been allowed until the point of quickening since colonial days. Quickening was the first sign of movement of the fetus in the uterus, and it was determined solely by the pregnant woman. The majority opinion in Roe, written by Justice Harry Blackmun, found that "the right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty . . . or in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy." To deny that right, Blackmun continued, "may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also distress, for all concerned, associated with the unwanted child." Roe did not make abortion an absolute right. Instead, Roe acknowledged the state's interest in protecting "potential life" as a pregnancy progresses, and the Court set up a trimester framework for state regulation. In the first trimester, the decision to end a pregnancy is left up to a woman and her doctor. In the second trimester, states may regulate abortion to protect the health of the mother. At and after the point of viability—when the fetus is able to survive independently outside the mother's womb—a state may ban abortion, except to preserve the life and health of the mother. Roe also found that "the unborn have never been recognized in the law as persons in the whole sense," and "the word ‘person,' as used in the Fourteenth Amendment, does not include the unborn." According to Feldt: "The Court said the question of when life begins is a religious and moral question more than a scientific question. The scientific fact is there is a continuum of life. At no time isn't there life. The question is, when does the life of a potential person take precedence over an already existing person?"
Immediately following Roe, abortion opponents formed the National Right to Life Committee and began a massive campaign to reverse the decision. Believing that life begins the moment an egg is fertilized, members of the self-termed "pro-life" movement equate abortion with murder. "I think when you have 1.5 million babies aborted every year, you have a whole generation that's never had a chance to be born," said Mary Spaulding Balch, director of state legislation for the NRLC. "The Roe decision mobilized a grassroots campaign the likes of which have never been seen," she said. "Many people thought when the decision was handed down, the issue was decided, but it was almost as if it awoke the proverbial sleeping giant." Betsy Elizabeth Cavendish, legal director and general counsel for the National Abortion and Reproductive Rights Action League, admits that abortion-rights activists never anticipated "the continuous political ferment" Roe would cause. Opposition to abortion broadened the Republican party to include two religious groups formerly at odds: Catholics and evangelical Protestants. Abortion became a political litmus test for the right wing of the Republican party, as abortion opponents attempted to weaken and destroy Roe though constitutional amendments, state and federal legislation, the courts, as well as through clinic picketing. When the political system failed to reverse Roe, some antiabortion activists resorted to harassment and violence against doctors performing and women seeking abortion. In January, this country saw its first fatal abortion clinic bombing in Birmingham, Ala. While an estimated 35 million abortions have been performed since Roe, anti-abortion activists have been able to chip away at the right and access for many women. Perhaps the biggest victory for abortion opponents came in 1992, when the Supreme Court decided the case of Planned Parenthood of Southeastern Pennsylvania v. Casey, 112 S. Ct. 2791 (1992). Although the court upheld Roe v. Wade, it created a new standard for judging whether abortion restrictions are constitutional. The Court abandoned the "strict scrutiny" test that had said states must prove a "compelling interest" to restrict abortion. Instead, a woman must be the one to prove that a state's restrictions place an "undue burden" on her right to choose. Since the Casey decision, states have enacted and are enforcing laws placing a whole slew of restrictions on abortion, including mandatory waiting periods (12 states), parental consent for minors (30 states), and mandatory lectures on fetal development. Ironically, one result of these restrictions has been to increase the percentage of second trimester abortions, which are less safe and more morally problematic to many. Abortion foes have also secured a ban on the use of federal funds for abortions. Military personnel and their families are prohibited from using private funds for abortions in military hospitals overseas, and federal employee health plans do not cover abortion. Many states also ban abortion in public facilities and specific abortion procedures, such as the so-called "partial birth" abortion. "Today you can get a safe, legal abortion if you're older, if you live in the right state, if you're not a federal employee or in prison, if you're not on Medicaid and if your health plan covers it," said Feldt of Planned Parenthood. Only 12 percent of medical schools now teach abortion, and 84 percent of counties in the United States have no abortion provider. Many of the doctors who are performing abortions are doing so because they remember the pre-Roe period when an estimated 5,000 women a year died from illegal botched abortions. Most of these physicians are approaching retirement age. "The crisis today is a creeping crisis," Weddington said. "I don't think the Court is ever going to write a line saying Roe is overturned. But they could so limit the access that the words will still be there, but without much meaning. We're already seeing some young women afraid to talk to their parents ending up trying the old self-remedies or illegal abortions. We're beginning, for the first time since Roe, to see women desperate." Limiting access to clinical abortions hasn't been the only victory for abortion opponents. They have also successfully opposed some forms of medical research that could lead to better contraceptives and earlier medical abortions, as well as treatments for numerous diseases. The drug mifepristone, also known as RU 486, is widely available in Europe as a safe abortifacient, and it can be used as an emergency contraceptive within 72 hours after unprotected sex, when it's too early to know whether an egg has been fertilized. Not only does the drug blur the lines between abortion and contraception, but it makes the process far more private. "It allows a woman to stay with her doctor without running the gauntlet at the clinic," Cavendish said. Mifepristone is also being tested as a male contraceptive and as a potential treatment for breast cancer. Bur so far, despite conditional approval from the FDA, threats of "boycotts and bombs" have scared away potential manufacturers of the drug in the United States, Cavendish said. Abortion foes have also stalled or halted much of the country's fetal tissue transplantation and embryo research, which have shown promise in treating diseases unrelated to reproduction. Fetal tissue research, for instance, has led to advances in the treatment of Parkinson's disease, spinal cord injuries, diabetes and leukemia. Despite the fact that organs from the corpses of murder victims can be donated, antiabortion activists believe tissue donation from aborted fetuses encourages abortion and should therefore be prohibited. For years, a federal-funding ban was, in fact, in effect. Although President Clinton lifted the moratorium in 1993, researchers are still hesitant to apply for federal funds, according to NARAL. Only five federally funded studies have begun, only two of which involve new research. "The period of not funding was so long that it froze everybody," said Alta Charo, a University of Wisconsin Law School professor and member of the National Bioethics Advisory Commission. A similar situation exists with research on human embryos. "An embryo is an unborn child, and it should not be disposed of and experimented with for the sake of research," said the NRLC's Spaulding Balch. For most of the past 18 years, the government has prevented any federal research on spare human embryos created through in vitro fertilization, but not implanted. The government also forbids the use of federal funds for the creation of human embryos specifically for research purposes. According to Charo, the ban prevents research into new contraceptives, the causes of miscarriage and the division and growth of cells in cancer victims. Research of embryonic stem cells, she said, holds out "the prospect of learning how to regenerate organs," such as new skin for burn victims, cardiac cells for heart attack victims and neural cells for people with spinal cord injuries. "The prohibitions are risky because they set a kind of limit on scientific research, which tends to work at unpredictable speeds," Charo said. The possibility of human cloning has opened up a whole new can of worms, and the debate over the ethics of cloning has run straight into the center of the abortion battle. Congress is now contemplating a complete ban on private and federal human cloning research, which could impact on all privately funded embryo research. "Cloning is a way to make new embryos," Charo said. "Cloning has reinvigorated the effort to shut down embryo research." While the Supreme Court has never weighed in on the issue of embryo research, Roe certainly has shaped and colored the law in this area. "Roe very clearly says states are permitted to express an interest in early life," Charo said. "Roe was a decision based on a balancing act. A woman has rights to bodily integrity, and the fetus is a disputed entity that's clearly human, clearly alive, but not guaranteed equal protection under the law. The woman wins in conflict." When it comes to embryo research and spare frozen embryo ownership, though, the woman's right to control her body isn't at issue. Therefore, some states have shown tremendous interest in protecting fetal rights. Louisiana law, for instance, states that embryos are persons who may not be intentionally terminated, according to Robyn Shapiro, chair of the ABA coordinating group on bioethics and the law. That means that in vitro fertilization clinics in that state are "faced with what to do with spare embryos if there's a death or divorce," she said. It also means that while clinics cannot destroy the embryos, women may implant and abort them. "We haven't come to a clear societal, moral and legal understanding of what the embryo and fetus are," said Lori Andrews, a professor at the Chicago-Kent College of Law. That confusion has led to a patchwork of laws involving the status of the fetus—some that run smack into the rights of women. A few states, for instance, hold that drug use during pregnancy is tantamount to child abuse. In South Carolina, a woman was convicted of murder for using cocaine during her pregnancy, although courts have struck down similar statutes elsewhere. Congress is now considering a law that would extend the death penalty to killers of pregnant women. "The only logical theory is that you've killed not one person, but two," said Elyse Rosenblum, chair of the IR&R Section's Rights of Women Committee. Clearly the impact of Roe goes far beyond the issue of abortion. Courts have used the rights of privacy and bodily integrity established in Roe to support the right to refuse life-sustaining medical treatment and for psychiatric inmates to refuse antipsychotic drugs. It also informed the Court's decision on physician-assisted suicide. Some courts have relied on Roe to determine that men have the right not to reproduce by having their frozen embryos implanted after a divorce. Roe has been used both to force some women to have Caesarean sections to assure that a healthy baby is delivered, and alternately, to prevent such unwanted intervention. "Roe v. Wade has become a Rorschach test," Andrews said. "People have used it in a whole variety of ways." Because the rights established in Roe "are interwoven with our legal fabric in such a rich and textured way," Cavendish says it has essentially become impossible to turn back the clock and reverse Roe. Even those Supreme Court justices that voted to overturn Roe have acknowledged the right of privacy it established in subsequent cases. "The impact of Roe is hard to fully comprehend," said Marcia Greenberger, copresident of the National Women's Law Center. "It has obviously saved enormous numbers of lives, improved women's health, made for stronger families. "It's allowed women to have healthier children, and it's given women the practical wherewithal to pursue their dreams and aspirations without fear of pregnancy shattering those dreams. By its very philosophy, Roe underscores the equality of women." |